The Supreme Court justices appeared closely split Wednesday on whether environmental laws can be used to protect whales and other marine mammals from the Navy’s use of sonar off the coast of Southern California.
A Bush administration lawyer argued that when national security is at stake, the president and his top military commanders are entrusted with setting the rules.
“The ability to locate and track an enemy submarine . . . is vitally important to the survival of our naval strike force . . . and therefore, critical to the nation’s own security,” said U.S. Solicitor Gen. Gregory G. Garre. For years, the Navy has conducted training exercises off the California coast to test whether ships can detect quiet-running enemy submarines. These exercises are “in the judgment of the president and his top naval officers in the paramount interests of the United States,” he added.
Garre urged the high court to throw out a Los Angeles judge’s order that put limits on the Navy’s operations. Acting on a suit brought by the Natural Resources Defense Council in Santa Monica, U.S. District Judge Florence-Marie Cooper ordered the Navy to shut down its high-intensity sonar whenever a whale or marine mammal is spotted within 1.25 miles of the ship.
The sonar emits a powerful sound wave in the water -- as “if we had a jet engine in this courtroom and you multiplied that noise by 2,000 times,” said Los Angeles lawyer Richard B. Kendall, who represented the NRDC. He said beaked whales, in panic, dive deeply to escape the sound, and they sometimes suffer bleeding and even death when they try to resurface. He also cited the Navy’s own estimate that 170,000 dolphins and other marine mammals would flee the sonar.
Garre agreed some marine animals might swim away, but he disputed the claim that they would be hurt or killed. “There have been beachings of beaked whales in Southern California. None of have been tied to sonar operations,” he said.
For his part, Kendall disputed that the judge’s order would hurt the Navy or disrupt its war-game exercises. He said the Navy had conducted 13 extended training exercises off California under the restrictions set by the judge, and only on a few occasions were ships forced to turn off their sonar.
The case has turned into a dispute over whether judges, acting on a suit brought by environmentalists, have the power to halt a government project because of its failure to carry out an environmental impact statement in advance. Cooper cited this failure by the Navy when she issued her order.
On Wednesday, she came under criticism from several justices.
“Is Judge Cooper an expert on antisubmarine warfare?” asked Justice Samuel A. Alito Jr. “Isn’t there something incredibly odd about a single district judge making a determination on that defense question . . . contrary to the determination the Navy has made.”
Justice Antonin Scalia said the law requiring environmental impact statements was “procedural” only. It did not give judges the power to stop government projects, he suggested. And Chief Justice John G. Roberts Jr. said that in balancing the interests, the judge did not give enough weight to the Navy’s concern. He described it as the “potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected.”
On the other side, Justices John Paul Stevens and David H. Souter wondered how the Navy could know its sonar would not harm the whales until it had studied the matter. “The whole theory of the environmental impact statement is we don’t really know what the harm will be,” Stevens said.
The Navy said it is working on an environmental impact statement on its training exercises, but it will not be complete until February, when the exercises are due to end.
Justice Anthony M. Kennedy, who usually casts the deciding vote in close cases, asked several questions but did not come down squarely on either side.
At one point, Justice Stephen G. Breyer said it was frustrating to resolve the conflicting evidence over whether the sonar does or does not harm marine mammals. “Why couldn’t you work this thing out?” he asked Kendall.
“The Navy is focused on having it its way or no way,” he replied.
“That’s not fair,” the chief justice countered. The Navy had taken steps to protect the marine mammals, he said, and the judge gave it little credit for doing so. “No good deed goes unpunished,” he added.
The justices are likely to hand down a ruling in the case, Winter v. NRDC, within a few months.